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ARTICLE
INVOKING THE ACT OF GOD DEFENSE
Laurencia Fasoyiro*
I. INTRODUCTION
The term force majeure has existed for many years.1 Often
likened to impossibility, it historically embodied the notion that
parties could be relieved of performing their contractual duties
when performance was prevented by causes beyond their control,
such as an act of God.2 The term “act of God” has been defined by
Congress as an act occasioned by an unanticipated grave natural
disaster.3 The use of the term “grave” to qualify a natural
disaster suggests that not all natural disasters are an act of God,
contrary to common belief. The disaster has to be an unusual
and extraordinary manifestation of the forces of nature that
could not have been anticipated or expected under normal
conditions.4 If the natural disaster is a normal occurrence in the
geographical area, then it could not be characterized as a grave
natural disaster, thus any resulting effect is not an act of God.
Typically, hurricanes are considered in law to be an act of
God.5 Nevertheless, they have to be of a grave nature to be
*Laurencia Fasoyiro is a staff attorney with the Texas Commission on Environmental
Quality, Litigation Division. Ms. Fasoyiro holds a B.A from the University of Houston, a
J.D. from Thurgood Marshall School of Law, and an LL.M in Environmental, Energy and
Natural Resources law from the University of Houston law center. All representations
and views in the following article are solely those of the author.
1.
ARTHUR A. CORBIN, CORBIN ON CONTRACTS § 1324 (1962).
2.
Id.
3.
Oil and Hazardous Substances Liability Act, 33 U.S.C.S. § 1321(a)(12)
(LexisNexis 1990).
4.
Jacoby v. Town of Gillette, 174 P.2d 505, 509 (Wyo. 1946).
5.
Skandia Ins. Co. v. Star Shipping AS, 173 F. Supp. 2d 1228, 1239-40 (D. Ala.
2001)
1
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characterized as an act of God.6 The reason hurricanes are
typically considered an act of God is because forecasting the
track, speed and tidal surge of a hurricane is one of the most
challenging and difficult tasks encountered by meteorologists and
7
Instead, hurricane tracks
rarely predicted with precision.
exhibit “humps, loops, staggering motions, abrupt course and/or
speed changes, and so forth,” which alter flood predictions.8 One
could conclude that this unanticipated and unpredictable nature
of a hurricane earns it the classification of an act of God. Yet,
despite the typically challenging and difficult task of forecasting
hurricanes, some courts, as will be shown later in this article,
have rejected classification of hurricanes as an act of God.
An act of God is also defined as an act occasioned exclusively
by forces of nature without the interference of any human
agency.9
This suggests that any human interference that
contributes to the incident is likely to result in a court’s rejection
of an act of God defense. This prohibition of any human
interference with the act of God makes it a very difficult, if not
impossible, hurdle to overcome, particularly when human
interference may be necessary to minimize the effect or impact of
the act of God. This raises the question of whether one, who in
good faith interferes with the act of God, would be precluded from
claiming the act of God defense.
To be an act of God, the misadventure or casualty has to be a
direct, immediate, and exclusive operation of the forces of nature,
uncontrolled and uninfluenced by the power of man, and without
human intervention.10 It has to be of such a character that it
could not have been prevented or escaped from by any amount of
foresight or prudence, or by any reasonable degree of care or
diligence.11
Several major environmental statutes strictly define the act
of God defense, making it almost impossible to meet. Despite the
strict and narrow construction of the act of God defense,
Potentially
Responsible
Parties
(“PRPs”)
under
the
Comprehensive Environmental Response Compensation and
Liability Act (“CERCLA”) continue to invoke it as a defense in an
6.
See id. at 1240 (“A hurricane that causes unexpected and unforeseeable
devastation with unprecedented wind velocity, tidal rise, and upriver tidal surge, is a
classic case of an “Act of God.””)
7.
See WILLIAM J. KOTSCH, WEATHER FOR THE MARINER 150 (2d ed. 1977).
8.
Id. at 151.
9.
BLACK’S LAW DICTIONARY 33 (6th ed. 1990).
10.
Id.
11.
Id.
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3
effort to limit their liability.12 In many instances, PRPs believe
the alleged incident would not have occurred but for the act of
God. As this article will show, this belief is highly distorted
because anyone invoking the act of God defense has a heavy
burden to overcome. It is not sufficient to simply attribute an
incident such as a hurricane or a heavy storm to an act of God.
Rather, one has to show that it was not humanly possible to
either foresee or prevent the alleged violation from occurring and
that the act of God was the sole cause of the incident.
This article analyzes the act of God defense in three major
federal environmental statutes and gives an overview of several
Texas environmental statutes dealing with the act of God defense
and the elements required to successfully proffer the defense.
The federal statutes: The Federal Water Pollution Control Act,13
(“FWPCA” or commonly known as the Clean Water Act “CWA”),
The Comprehensive Environmental Response, Compensation,
and Liability Act14 (“CERCLA”), and Oil Pollution Act15 (“OPA”)
(collectively referred to as “Federal Environmental Statutes”) are
all similar in their approach to the act of God defense. The party
asserting an act of God defense must prove, by a preponderance
of the evidence, not only the occurrence of the act of God but that
the act of God was the sole cause of the violation.16 Indeed, they
must not only assert an act of God, they must also establish lack
of fault in order to be exonerated from liability.17
As will be analyzed in this article, to successfully invoke the
act of God defense one must show that: the act of God was
unanticipated; the act of God was a grave natural disaster or
other natural phenomenon of an exceptional, inevitable, and
irresistible character; the act of God was the sole cause of the
disaster; and the violation resulting from the act of God could not
have been prevented by exercise of due care or foresight.
II. OVERVIEW OF MAJOR FEDERAL ENVIRONMENTAL
STATUTES
A. The Federal Water Pollution Control Act known as the Clean
12.
Potentially responsible parties in this context refer to anyone who may be facing
liability in an act of God related case.
13.
See generally Clean Water Act, 33 U.S.C. §§ 1251-1387 (1977).
14.
See generally Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. §§ 9601-9675 (1980).
15.
See generally Oil Pollution Act, 33 U.S.C. §§ 2701-2761 (1990).
16.
Skandia Ins. Co., 173 F. Supp. 2d at 1241-42
17.
Id.
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Water Act
The Clean Water Act defines an act of God as an act
18
occasioned by an unanticipated grave natural disaster. Under
this definition, only those acts about which the owner could have
had no foreknowledge, could have made no plans to avoid, or
could not predict, would be included as an act of God.19
The CWA was enacted “to restore and maintain the
chemical, physical, and biological integrity of the Nation’s
20
waters.” Basically, the CWA holds owners or operators of the
applicable vessel or onshore/offshore facilities that cause damage
to water liable to the United States for cleanup costs, except if
the owner or operator proves that the discharge was caused by
one of the liability exceptions which include an act of God.21
Under the CWA, the basic responsibility for oil spill cleanup
is on the President of the United States, although spillers may
22
In either case, strict
undertake the cleanup themselves.
23
liability is applied. If the United States incurs cleanup costs, it
may recover against the vessel or against the owner or operator,
in any court of competent jurisdiction, unless the spill was
caused solely by one of the liability exceptions, including an act of
24
God. If the spiller has incurred cleanup costs, it may recover
against the United States if it can prove that the spill was caused
solely by an act of God.25
B. Comprehensive Environmental Response Compensation and
Liability Act (“CERCLA”)
CERCLA is a broad remedial statute that Congress enacted
to enhance the authority of the Environmental Protection Agency
(“EPA”) to respond effectively and promptly to toxic pollutant
26
spills that threaten the environment and human health.
CERCLA relieves a PRP from liability in the release of hazardous
material if the release or threatened release of hazardous
18.
Id.; 33 U.S.C. § 1321(a)(12).
19.
Sabine Towing & Transp. Co. v. U.S., 229 Ct. Cl. 265, 269-70 (Ct. Cl. 1981).
20.
33 U.S.C. § 1251(a).
21.
33 U.S.C. § 1321(f)(1).
22.
See id. See also CONF . REP. NO . 940 (for the Water Quality Improvement Act of
1970), 91st Cong., 2d Sess., reprinted in 1970 U.S.C.C.A.N 2712, 2723.
23.
Steuart Transp. Co. v. Allied Towing Corp., 596 F.2d 609, 613 (4th Cir. 1979).
24.
33 U.S.C. § 1321.
25.
Id.
26.
B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1197 (2d Cir. 1992).
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5
substances was caused solely by an act of God.27 In order to
prevail, a defendant must establish by a preponderance of the
evidence that he exercised due care and took precautions.28 As in
the CWA, CERCLA imposes strict liability on responsible parties
notwithstanding any other provision or rule of law, and subject
29
CERCLA
only to the defenses set forth in section 107(b).
defines an act of God a bit differently from the definition in the
CWA. In CERCLA, an act of God is defined as “an unanticipated
natural disaster or other natural phenomenon of an exceptional,
inevitable, and irresistible character, the effects of which could
not have been prevented or avoided by the exercise of due care or
foresight.”30
C. The Oil Pollution Act (“OPA”)
The OPA was signed into law by President Bush on August
31
18, 1990. In the wake of the eleven-million gallon spill from
Exxon Valdez in Alaska’s Prince William Sound, the OPA
amended the CWA to require federal removal of oil spills and
federal approval of oil spill response plans, provided expanded
cleanup and oversight responsibilities of the federal government,
and increased the potential liabilities of responsible parties,
significantly
broadening
their
financial
responsibility
requirements.32 The OPA relieves a responsible party of liability
for removal costs or damages if the responsible party establishes,
by a preponderance of the evidence, that the discharge or
substantial threat of a discharge of oil and the resulting damages
or removal costs were caused solely by an act of God.33 Similar to
the CWA and CERCLA, liability under the OPA is strict, and the
34
absence of fault, or the exercise of due care is not a defense.
The OPA established a comprehensive Federal oil spill response
and liability framework, and ushered in several landmark
reforms.35
Prior to the OPA, the CWA provided liability
limitations for federal pollution removal costs associated with oil
27.
42 U.S.C. § 9607(b)(1).
28.
U.S. v. Stringfellow, 661 F. Supp. 1053, 1061 (C.D. Cal. 1987) (quoting 42 U.S.C.
§ 9607(b)(3)).
29.
42 U.S.C. § 9607(a)(1).
30.
42 U.S.C. § 9601(1).
31.
Apex Oil Co. v. U.S., 208 F. Supp. 2d 642, 651 (E.D. La. 2002).
32.
S. REP. NO. 101-94, 101st Cong., reprinted in 1990 U.S.C.C.A.N. 723-24, 729.
33.
33 U.S.C. § 2703(a)(1) (1990).
34.
In re Metlife Capital Corp., 132 F.3d 818, 820-21 (1st Cir. 1997).
35.
See Apex Oil Co., 208 F. Supp. 2d at 651.
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spills.36
The definition of an act of God in the OPA is identical to that
provided by CERCLA. Similar to CERCLA, the OPA defines the
term act of God as an “unanticipated grave natural disaster or
other natural phenomenon of an exceptional, inevitable, and
irresistible character the effects of which could not have been
37
prevented or avoided by the exercise of due care or foresight.”
The OPA’s definition of act of God may be interpreted through its
relationship with the CWA and CERCLA.38
The legislative history of OPA shows that it “amended,
expanded, and strengthened pre-existing statutes that addressed
oil spill cleanup, liability and compensation.”39 Further, “the
body of law already established under section 311 of the CWA is
the foundation of the OPA.”40 Therefore, “many of that section’s
concepts and provisions are adopted directly or by reference.”41
In light of the legislative history and congressional intent, the
OPA’s act of God defense should be read to be at least as
restrictive in its scope as it is under both the CWA and CERCLA
cases.42 The Senate Report specifically provides that the OPA
continues to rely on the CWA as the basic law providing for
cleanup authority, penalties for spills and failure to notify of
spills, and, by adopting the standard of liability under CWA’s
section 311, the standard of liability under the OPA.43 That
standard of liability has been determined repeatedly to be strict,
joint, and several liability.44 The only defenses to strict liability
are that removal costs were caused solely by one of the liability
45
exceptions, which includes an act of God.
36.
37.
38.
39.
24, 726).
40.
41.
42.
43.
44.
45.
33 U.S.C. §§ 1251-1387.
33 U.S.C. § 2701(1).
See Apex Oil Co., 208 F. Supp. 2d at 654.
Id. (citing S. R EP. NO. 101-94, 101st Cong., reprinted in 1990 U.S.C.C.A.N. 723Id.
Id.
Id.
See Apex Oil Co., 208 F. Supp. 2d at 652.
Id.
33 U.S.C. § 2703(a)(1).
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III. ELEMENTS OF THE FEDERAL ENVIRONMENTAL ACT
OF GOD DEFENSE
A. The act of God must be unanticipated
In reviewing an act of God case using the Federal
Environmental Statutes the court must first determine whether
the act of God in issue was unanticipated. If there is any
indication that the act of God could have been anticipated or
predicted, perhaps due to past events, the court will not accept
such a defense. Several cases have illustrated the courts’ holding
that an act of God must be unanticipated.
In Sabine Towing and Transportation Company v. United
States, the plaintiff sought recovery from the Government of
plaintiff’s costs in cleaning up an oil spill from a damaged ship on
46
the Hudson River. The ship had suffered a ruptured hull when
it struck an unknown underwater object in the Hudson River
channel.47 The unknown object was likely deposited in the
riverbed during an increased rate of flow in the river, known as a
“freshet,” due in this instance to rain and the spring runoff of
melted snow.48 Although there was no way to determine what
may have rolled down the river and embedded in the riverbed
during a freshet, it was normal practice not to interrupt regular
navigation on this account.49 There was no significant oil spillage
from the ship until the ruptured tank was opened for
50
discharging. The opening released a partial vacuum in the tank
that had been created as the oil inside had cooled from its high
loading temperature and allowed 30,000 to 50,000 gallons to
escape out of the tear and into the Hudson.51 The plaintiff argued
that the freshet condition on the river which led to the spill was
unanticipated and that the resulting spill was an act of God.
The court, applying the act of God definition in CWA,
considered whether the unknown debris that the ship struck, or
the freshet condition that deposited it, was unanticipated.52 The
court relied on the definition of act of God as it appears in section
1321(a)(12) from the conference committee for the final version of
46.
47.
48.
49.
50.
51.
52.
See Sabine Towing & Transp. Co., 229 Ct. Cl. at 266.
Id.
Id. at 267.
Id.
Id.
See Sabine Towing & Transp. Co., 229 Ct. Cl. at 267.
Id. at 269.
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the Water Quality Improvement Act of 1970.53 There, the
committee defined the term act of God as an act occasioned by an
unanticipated grave natural disaster.54 Under this definition,
only those acts about which the owner could have had no
foreknowledge, could have made no plans to avoid, or could not
55
predict would be included.
56
The court held that the hull rupture was not unanticipated.
The decision was based on the reasoning that the frequency of
freshet conditions on the Hudson and the danger that they
caused were well known to those who navigate the river and
57
The court explained
could have, therefore, been anticipated.
that Congress did not mean to allow recovery for spills resulting
from events as regular and predictable as freshets.58 The court
rejected plaintiff’s argument that it could not have avoided the
accident without suspending its operations, and that Congress
could not have intended that shippers stop using the Hudson
whenever there is danger from freshets.59
Instead, the court countered that it would be inconsistent
with the strictness with which the conference committee
recommended that “unanticipated,” for the purposes of section
1321, be read to allow the section to cover regular and frequent
conditions, like freshets, where the dangers are expected and
where the losses are normally worked into the cost of doing
business.60 Therefore, the court concluded that the freshet
condition should have been anticipated. The court’s holding in
Sabine thus shows that a bad weather condition in a
geographical area, which is not unusual for that area, will not be
characterized as unanticipated and, as such, any resulting
incident will not be considered an act of God.
In Liberian Poplar Transports, Inc. v. United States, the
61
court applied the same reasoning from Sabine Towing. Plaintiff,
Liberian Poplar Transports, Inc., was the owner of the M/V
World Radiance (World Radiance), a vessel operated by
53.
Id.
54.
Id. at 268 (citing Conf. Rep. No. 940, 91st Cong., 2d Sess., reprinted in 1970
U.S.C.C.A.N. 2712, 2722).
55.
Id.
56.
See Sabine Towing & Transp. Co., 229 Ct. Cl. at 270.
57.
Id.
58.
Id.
59.
Id.
60.
Id.
61.
Liberian Poplar Transp., Inc. v. U.S., 26 Cl. Ct. 223 (1992).
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Worldwide Shipping Agency, Inc.62 The World Radiance was
transferring oil at the Chevron Hog Island facility in
Philadelphia, Pennsylvania at approximately 1:00 p.m.63
Plaintiff claimed that the captain of the World Radiance had
checked the weather conditions on the radio prior to commencing
64
transfer operations and had found no reports of severe weather.
Later that night, the National Weather service issued a Severe
Thunderstorm Watch for the Philadelphia Metropolitan Area,
but the crew of the World Radiance had not monitored the radio
for weather conditions since the transfer began.65 Nonetheless,
plaintiff contended that the third mate on watch observed no
signs of the impending storm as late as 9:15 p.m. that night.66
Because of the storm’s sudden onset, plaintiff maintained that
the crew was unaware of the storm until it virtually was upon
them.67 Although plaintiff cleaned up the oil leak, plaintiff
sought reimbursement under the CWA for amounts spent on the
cleanup arguing, in part, that the storm was unanticipated.68
The court disagreed with the plaintiff’s contention that the
storm was not anticipated because the storm was not well
69
forecasted, and was not visually foreseeable by the ship’s watch.
The court reasoned that the plaintiff’s argument was subjective
rather than objective based on a reasonable person standard,
particularly when the statute and the legislative history do not
70
subscribe to a subjective test. Whether the crew did or did not
actually anticipate the storm is beside the point, said the court.71
If the crew had monitored the radio for weather conditions, they
clearly could have anticipated and taken precautions against the
72
Furthermore, the court reasoned that although the
storm.
storm was not well forecasted, it was in fact forecasted at least
an half-hour before it hit, and there was an indication of bad
weather in a storm watch issued approximately an hour before
the storm struck.73 Based on all the facts, the court concluded
62.
63.
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
Id. at 224
Id.
Id.
Id.
See Liberian Poplar Transp., Inc., 26 Cl. Ct. at 224.
Id.
Id.
Id. at 226.
Id.
Liberian Poplar Transp., Inc., 26 Cl. Ct. at 226.
Id.
Id.
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that the storm could have been anticipated and therefore could
not be considered an act of God.74
Clearly, the court places a high burden on anticipation. One
cannot simply argue that they did not anticipate the act of God
due to insufficient notice or warning. Judging from the court’s
decision, it is clear that the anticipation element is not
subjective. Rather, the test is whether a reasonable person could
have or should have anticipated the occurrence of the act of God
and consequently avoided the impact. The length of time or the
argument that one did not have sufficient warning does not seem
to relieve a party of responsibility. It appears that so long as a
party had some warning prior to the occurrence of the violation,
the court will find that the event was anticipated, thereby
barring an act of God as a defense. This strict and narrow
standard applied by the courts make it very difficult for one to
successfully argue an act of God as a defense, particularly when
the act of God is an adverse weather condition such as a
hurricane because these conditions are often forecasted. As a
result, more often than not, a party will probably be unsuccessful
in showing that the act of God was unanticipated.
B. The act of God must be a grave natural disaster
The defense for the exceptional natural phenomenon is
similar to, but more limited in scope than, the traditional
common law act of God defense.75 It has three elements: the
natural phenomenon must be exceptional, inevitable, and
76
irresistible. Proof of all three elements is required for successful
assertion of the defense.77 Many occurrences asserted as acts of
God would not qualify as an exceptional natural phenomenon.78
For example, a major hurricane might otherwise be an act of
God, but in an area (and at a time) where a hurricane should be
expected, it would not qualify as a phenomenon of exceptional
79
Courts addressing the act of God defense in
character.
CERCLA have found that flood and periodic storm events do not
constitute the type of happening to which the CERCLA act of
74.
Id.
75.
See Apex Oil Co., 208 F. Supp. 2d at 653 (citing H.R. R EP. NO . 99-253(IV), 1986
U.S.C.C.A.N. (99 Stat.) 3068, 3100).
76.
H.R. R EP. NO . 99-253(IV), at 71 (1986), reprinted in 1986 U.S.C.C.A.N. (99 Stat.)
3068, 3101.
77.
Id.
78.
See Apex Oil Co., 208 F. Supp. 2d at 653.
79.
Id.
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God exception applies.80
For one to successfully plead an act of God as an affirmative
defense, one has to show that the act of God was not just a
natural disaster or other phenomenon of an exceptional,
inevitable, and irresistible nature, but that the natural disaster
was “grave” in nature, meaning that the natural disaster has to
81
In Sabine Towing, on the issue of
be extremely serious.
whether the spring runoff of the melted snow or the underwater
object in the Hudson amounted to a grave or exceptional natural
disaster, the court rejected the plaintiff’s act of God defense,
noting that “neither the spring runoff of the melted snow nor the
object struck by the ship was a disaster as the word is commonly
used.”82 The court defined disaster as “a sudden calamitous event
bringing great damage, loss, or destruction; broadly: a sudden or
great misfortune.”83
The court was not persuaded by the
plaintiff’s claim that the tearing of the ship was a disaster,
because the CWA was not written so subjectively.84 The court
reasoned that the definition of act of God requires that the
disaster be the cause and not the effect.85 Therefore, under this
construction, a weather condition such as melted snow runoff
does not amount to a grave natural disaster or exceptional
86
natural phenomenon. The court explained that “grave natural
disasters which could not be anticipated in the design, location,
or operation of the facility or vessel by reason of historic,
geographic, or climatic circumstances or phenomena would be
outside the scope of the owner’s or operator’s responsibility.”87
Because the spring runoff could be anticipated in that
geographical vicinity, it could not possibly be a grave disaster
within the meaning of the CWA.
In another case, plaintiffs sought to recover the cost of
remediation from the owners and operators of a toxic waste
disposal site (“the Stringfellow site”) pursuant to CERCLA and
88
CWA. The defendants contended that the heavy rainfall that
80.
U.S. v. Atl. Richfield Co., 1996 U.S. Dist. LEXIS 22885, at *1, *1212 (D. Mont.
July 1, 1996).
81.
See WEBSTER’S THIRD N EW INTERNATIONAL DICTIONARY 2168 (1976) (defining
“grave” as “extremely serious, fraught with danger or harm”).
82.
See Sabine Towing & Transp Co., 229 Ct. Cl. at 270.
83.
Id. at n.5
84.
Id.
85.
Id.
86.
See id. at 270.
87.
See Sabine Towing & Transp Co., 229 Ct. Cl. at 269 (citing CONF . REP. NO. 91940, reprinted in 1970 U.S.C.C.A.N. 2712, 2722).
88.
See Stringfellow, 661 F. Supp. at 1059.
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led to the release of hazardous substances was a natural disaster,
which constituted an act of God.89 However, the Court disagreed,
holding that “the rains were not the kind of exceptional natural
phenomena to which the narrow act of God defense of section
90
“Therefore, the court conclude[d] that the
107(b)(1) applies.”
rains were not sufficient to establish an act of God defense.”91
In a similar case, the United States brought an action under
section 107 of CERCLA against the Atlantic Richfield Company
(“ARCO”) “for reimbursement of costs incurred and to be incurred
by the United States in responding to releases and the threat of
releases of hazardous substances at certain areas of Superfund
92
sites.” The United States moved for summary judgment as to
ARCO’s act of God defense.93 Specifically, the United States
argued, in part, that ARCO could not establish that the flood and
storm events it had identified in support of its act of God defense
were grave natural disasters.94 ARCO attributed the release of
hazardous substances to the severity of an exceptional rain storm
and a snowmelt, which it characterized as an act of God.95 The
court considered whether the flood was a grave natural disaster
or other natural phenomenon of an exceptional, inevitable, and
irresistible character.96 Citing the Stringfellow case, the court
reiterated the reasoning that in the CERCLA context, flood and
periodic storm events do not constitute the type of happening to
97
which the act of God defense applies. The court concluded that
there was nothing grave, exceptional, inevitable, or irresistible
about the event.98
The various court decisions regarding the issue of what
constitutes “grave” natural disaster have made it clear that
excessive rainfall and melted snow runoff are not grave natural
disasters or other natural phenomenon of an exceptional,
inevitable, and irresistible character contemplated by CERCLA.
This heightens the burden on a respondent or a PRP who claims
the violation occurred due to a heavy rainfall or snow, and makes
89.
Id. at 1061.
90.
Id.
91.
Id.
92.
Atl. Richfield Co., 1996 U.S. Dist. LEXIS 22885, at *5-6.
93.
Id. at *6.
94.
Id. at *9-10.
95.
Id. at *15.
96.
Id. at *12.
97.
Atl. Richfield Co., 1996 U.S. Dist. LEXIS 22885, at *12 (citing Stringfellow, 661
F. Supp. at 1061).
98.
Id. at *18.
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INVOKING THE ACT OF GOD DEFENSE
13
it almost impossible to show that the nature of the natural
disaster was “grave.”
C. The act of God must be the sole cause of the disaster
Generally, “an act of God must be caused exclusively and
directly by natural causes because when the cause is found to be
in part the result of the participation of man, whether it is from
active intervention or neglect, the whole occurrence is thereby
humanized and removed . . . from acts of God.”99 In Stringfellow,
referring to CERCLA’s section 107(b) act of God defense, the
court held that the polluters must show that the release of
100
In
hazardous substances was caused solely by an act of God.
essence, there can be no combination of an act of God and fault of
man; the act of God must be the sole cause.101 An occurrence is
an act of God if it results solely from a grave natural disaster.102
103
However, in
The terms “solely” and “caused” are not defined.
determining the meaning of the term “solely”, the court assumed
its common definition: “without an associate: singly, alone.”104
This suggests that there can be no contributing factor to the
cause of the natural disaster. Simply put, for one to successfully
invoke an act of God as a defense, the act in question must be
“occasioned exclusively by violence of nature without the
interference of any human action.”105
In Apex, plaintiff filed suit appealing the denial of its claim
106
for reimbursement of oil spill clean up costs under the OPA.
The oil company was towing barges, some of which were laden
with slurry oil, up the Mississippi River toward their final
destination in Chicago, knowing (1) the flood stage condition of
the river, (2) that strong fast currents were precipitating damage
to navigational aids, (3) that effects were migrating down river,
and (4) after being duly advised that caution should be exercised
in light of the considerably perilous conditions.107 The tug and
barge collided with a bridge abutment, which resulted in an oil
99.
Shea-S&M Ball v. Massman-Kiewit-Early, 606 F.2d 1245, 1249 n.6 (D.C. Cir.
1979).
100.
See Stringfellow, 661 F. Supp. at 1061.
101.
Sky Aviation Corp. v. Colt, 475 P.2d 301, 304 (Wyo. 1970).
102.
CONF. REP . NO. 91-940, reprinted in 1970 U.S.C.C.A.N. 2712, 2719.
103.
U.S. v. W. of Eng. Ship Owner’s Mut. Prot. & Indem. Ass’n, 872 F.2d 1192, 1196,
1198 (5th Cir. 1989).
104.
Id. at 1198; WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2168 (1976).
105.
CONF. REP . NO. 91-940, reprinted in 1970 U.S.C.C.A.N. 2712, 2719.
106.
See Apex Oil Co., 208 F. Supp. 2d at 644.
107.
Id. at 656-57.
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spill.108 Apex argued that the flood and exceptionally strong and
unpredictable currents solely caused the oil spill and was an act
of God.109
“Apex accepted responsibility for the discharge, [and] funded
110
removal activities.” Subsequently, Apex submitted a claim to
the National Pollution Fund Center (“NPFC”) for reimbursement
of its removal costs and salvage activities claiming entitlement to
the act of God defense.111 Apex’s claim was supported by “the
Coast Guard’s Marine Casualty Investigation Report (“MCIR”),
which reached a conclusion that there was no negligence on the
part of Apex’s pushboat captain and that a prudent mariner
112
could not have foreseen the situation.”
Despite MCIR’s findings, “NPFC. . . rejected Apex’s claim
that an act of God was solely responsible for the release of [the]
slurry oil.”113 Instead, NPFC concluded that human influence (i.e.
Apex’s decision to continue to navigate despite knowing the flood
stage condition of the river) partly caused the incident and that
the flood was not the sole cause.114 The reasoning for NPFC’s
decision was that because the Captain “was aware that the
current on the river was strong and that the water was high, it
appeared he took a knowledgeable risk in proceeding, which led
to the unfortunate event.”115
Subsequently, Apex brought suit “against the United States
seeking review of NPFC’s decision denying its claim for
116
The
reimbursement of recovery costs and cleanup expenses.”
court, in determining whether the act of God was the sole cause
of the collision and resulting spill, compared the facts of this case
117
There, the court rejected the plaintiff’s
to the Sabine case.
characterization of a freshet condition as an act of God,
reiterating that an act of God must result solely from a grave
natural disaster, and must be unanticipated.118 The Apex court
explained that if freshet conditions in Sabine did not constitute
an act of God within the meaning of CWA, then surely “a swift
108.
109.
110.
111.
112.
113.
114.
115.
116.
117.
118.
Id. at 645.
Id.
See Apex Oil Co., 208 F. Supp. 2d at 645
Id.
Id.
Id. at 646.
Id.
See Apex Oil Co., 208 F. Supp. 2d at 646.
Id. at 648.
Id. at 657.
Id. (citing Sabine Towing, 666 F. 2d at 564).
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unpredictable current on the Mississippi River at or about the
time of heavy rains which caused the Mississippi River to rise to
flood stage can not constitute an act of God within the meaning of
the OPA.”119 The court attributed the most apparent cause of the
release to the “underpowered Apex tug,” and the tug captain’s
choice to negotiate the bridge with his tug in spite of the
120
Therefore, the court concluded that the
intensifying current.
act of God was not the sole cause of the oil spill.121
In another case, the court held that a cold spell was not the
122
sole cause of an incident and did not constitute an act of God.
The case involved a suit by the United States under CERCLA
seeking recovery of response costs expended by the EPA in
cleaning up a former site of defendant Barrier Industries, Inc.
(“Barrier”) operated by Barrier’s principal, defendant Kurt
Wasserman (“Wasserman”).123 “Wasserman, who operated the
Barrier site, [did] not contest that the Government established a
prima facie case of his liability under CERCLA, but contend[ed]
that a genuine issue exist[ed] as to whether he was entitled to
the act of God defense.”124 Specifically, Wasserman argued that
the spills were caused solely by the bursting of pipes occasioned
by an unprecedented cold spell which constituted an act of God.125
In rejecting Wasserman’s act of God defense, the court
focused on the phrase “caused solely by” and held that the cold
spell did not fall within the CERCLA definition of an act of God
because it was not the sole cause of the release of hazardous
waste.126 The court agreed with the Government that there was
substantial undisputed evidence that numerous other factors
antedating the cold weather causally contributed to the problems
at the Barrier site, and that the cold spell was not the sole
127
The court’s reasoning reiterates the theory that any
cause.
human intervention at any point in the chain of events leading to
an incident may render the act of God defense useless by making
it impossible to meet the burden of proof.
In another case, the government brought an action under
CERCLA against an aluminum manufacturer, Alcan Aluminum
119.
120.
121.
122.
123.
124.
125.
126.
127.
Id.
See Apex Oil Co., 208 F. Supp. 2d at 657.
Id. at 658.
U.S. v. Barrier Indus. Inc., 991 F. Supp. 678, 679 (S.D.N.Y. 1998).
Id.
Id.
Id.
Id.
Barrier Indus. Inc., 991 F. Supp. at 679-80.
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(“Alcan”) to recover response costs.128 Addressing the act of God
defense relating to a hurricane, the court dismissed Alcan’s
argument that the release of toxic substances occurred in
connection with the torrential downpour of rain associated with a
129
In rejecting Alcan’s
hurricane and constituted an act of God.
act of God defense, the Court found that the hurricane was not
the sole cause of the release because Alcan’s earlier conduct
(unlawful disposal) played a part in flushing the chemicals into
the river.130 The court reasoned that “two million gallons of
hazardous wastes were not dumped into the borehole by an act of
God, and were it not for the unlawful disposal of this hazardous
waste [the] hurricane would not have flushed the [toxic
substance] into the river.”131 The court agreed that while the
storm was part of the chain of events that led to the harm, it was
not the sole cause.132
The legislative history of the CWA indicates that an owner
or operator will be exempt from liability when the discharge is
beyond his control.133 The Senate CWA Report used the phrases
“no control” and “beyond the control of” to refer specifically to an
act of God.134 The discharge had to have been caused solely by an
act of God and the owner or operator could have had no
foreknowledge, could have made no plans to avoid, or could not
have predicted in order to be beyond the control of an owner or
135
operator. “[The] language ‘no foreknowledge,’ ‘make no plans to
avoid,’ and ‘could not predict’ supports the use of foreseeability as
a means of setting the parameters of the term ‘caused’ as used in
section 1321(f)(1).”136 Therefore, if the discharge was foreseeable,
one could not claim an act of God as the sole cause.
D. Lack of negligence is insufficient to prove up an act of God
defense
Although the language of the CWA is couched in causation
terms requiring an owner or operator to prove that the discharge
was the sole cause of the incident in order to escape liability, it
128.
U.S. v. Alcan Aluminum Corp., 892 F. Supp. 648, 650 (M.D. Pa. 1995).
129.
Id. at 658.
130.
Id.
131.
Id.
132.
Id.
133.
S. REP . No. 91-351, reprinted in 3 U.S. E.P.A, L EGAL COMPILATION 1328-29 (III
vol. 1973).
134.
Id. at 1329.
135.
Id.
136.
W. of Eng. Ship Owner’s, 872 F.2d at 1199 n.13.
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does not state that a showing of non-negligence on the part of the
discharger will suffice to invoke the act of God defense and
absolve the owner and operator from liability.137 In enacting the
statute, Congress expressly used the term “negligent” in some
parts of the CWA but did not use such a term in articulating the
burden that an owner or operator must carry in order to satisfy
138
the liability exceptions, which includes the act of God defense.
Instead, Congress used the phrase “caused solely by” with no
indication that fault, or the lack thereof, plays a role in proving
the act of God defense.139
In West of England Ship Owner’s, the defendant’s barge
struck an unmarked wreck and discharged oil.140 After the owner
of the barge refused responsibility for the discharge, the United
States removed the oil and sued the owner under the CWA for
the cost of cleanup.141 The defendants argued that they were
entitled to judgment, in part, because the discharge did not occur
as a result of their negligence.142 The defendants argued that
merely proving lack of fault satisfied an act of God defense.143
The defendants explained that Congress expressed a clear intent
in the Senate Committee Report of the CWA that any culpability
on the part of the owner or operator would vitiate the act of God
144
exception.
The court disagreed with the defendants’ argument that lack
145
Instead, the court held
of fault satisfied an act of God defense.
that the barge owner’s decision to travel outside the maintained
channel, while not negligent, was a proximate cause of the
discharge, because the water was shallower and obstructions
146
The court
were more common in that area of the river.
cautioned that the language of the statute does not state, or even
imply, a lack of negligence automatically proves an act of God
defense: an owner or operator establishes the existence of a
section 1321 exception, absolving itself from liability, once it
137.
138.
139.
140.
141.
142.
143.
144.
Id.
Id.
Reliance Ins. Co. v. U.S., 677 F.2d 844, 844 (Ct. Cl. 1982).
See W. of Eng. Ship Owner’s, 872 F. 2d at 1193.
Id.
Id. at 1195.
Id.
See W. of England Ship Owner’s, 872 F. 2d at 1196 (citing SENATE COMM. ON
PUBLIC WORKS, F EDERAL WATER POLLUTION CONTROL ACT , S. R EP. NO . 351, at 6 (1969)
(emphasis added), as reprinted in III EPA COMPILATION OF LEGAL AUTHORITY,
LEGISLATIVE HISTORY OF THE FEDERAL WATER POLLUTION CONTROL ACT, at 1329 (1973)).
145.
Id.
146.
Id. at 1199.
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proves that it was non-negligent.147 The court reasoned that the
act of God defense in the CWA was causation-based and not
fault-based.148 Therefore, the court rejected the defendants’
argument that proof of non-negligence alone was sufficient to
149
exonerate them from liability.
In U.S. v. Tex-Tow, Inc. the appellant appealed from the
district court’s enforcement for a discharge of oil into navigable
150
Tex-Tow operated a tank barge that was being loaded
waters.
with a cargo of gasoline at a dock on the Mississippi River owned
151
As the barge was filled
and operated by Mobil Oil Company.
with gasoline, it sank deeper into the water, settling on an
underwater steel piling that was part of the dock structure.152
The piling punctured the hull of the barge, resulting in a
discharge of 1600 gallons of gasoline into the river.153 Although
the court agreed that Tex-Tow was not at fault because it had no
knowledge of the piling, it concluded that the cause of a spill is
the polluting enterprise rather than the conduct of the charged
party or a third party.154 Accordingly, the court held that Tex-Tow
as an owner or operator of a discharging facility was liable even
where it exercised all due care and a third party’s act or omission
was the immediate cause of the spill.155 In essence, the court
affixed legal responsibility on Tex-Tow despite an absence of
156
fault or negligence.
E. The disaster could not have been prevented by exercise of due
care or foresight
An essential element of the act of God defense is that the
damage from the natural event could not have been prevented by
157
The defendants are not
the exercise of reasonable care.
relieved from their liability by the damage or loss through an act
of God until it is determined whether the damage arose through
want of proper foresight and prudence.158 To relieve a defendant
147.
148.
149.
150.
151.
152.
153.
154.
155.
156.
157.
158.
Id. at 1196.
Id.
W. of England Ship Owners, 677 F.2d at 1196.
U.S. v. Tex-Tow, Inc., 589 F.2d 1310, 1310 (7th Cir. 1978).
Id. at 1312.
Id.
Id.
Id. at 1316.
Tex-Tow, 589 F.2d at 1316.
Id. at 1314.
Skandia Ins. Co., 173 F. Supp. 2d at 1242.
Id.
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19
from responsibility, it is incumbent on him to prove that due
diligence and proper skill were used to avoid the damage and
that it was unavoidable.159
The federal courts’ “weathered” experience with the act of
God defense has produced one crucial principle: if a defendant
has sufficient warning and reasonable means to take proper
action to guard against, prevent, or mitigate the dangers posed
by the act of God but fails to do so, then the defendant is
responsible for the loss. However, “if there were insufficient
warnings or insufficient means available to the defendant to
protect. . . from the “act of God,” then they are not responsible for
160
With this explanation, one has to wonder what the
the loss.”
court considers as “insufficient warning,” considering the act of
God defense has been rejected in cases where the proponent of
the defense argued that it did not have sufficient warning to
guard against the storm.161 In Liberian Poplar Transp., Inc. v.
U.S. the Court disagreed with the plaintiff’s contention that
because the storm was not well forecasted, and was not visually
foreseeable by the ship’s watch, that the storm was not
anticipated.162 This contradictory holding makes it difficult to
discern what the court considers sufficient warnings for the
purposes of exercising due care.
It is probably safe to say that court review on a case-by-case
basis will make the determination of whether a prior warning is
sufficient. Clearly, the court in Liberian Poplar believed there
was sufficient forecast of the storm to warrant the respondent to
exercise due care to avoid the damage caused by the storm
contrary to the respondent’s belief, whereas the court in Skandia
seems willing to accept the act of God defense in a circumstance
163
where there was an insufficient warning.
When a person is claiming that due care was exercised to
prevent the loss, any act, omission or carelessness contributing to
164
As such, an act of God must
the loss, takes away the defense.
be caused exclusively and directly by natural causes, because
when the cause is found to be in part the result of the
participation of man, whether it is from active intervention or
neglect, the whole occurrence is thereby humanized and not
159.
160.
161.
162.
163.
164.
Id.
Id.
See Liberian Poplar Transp., Inc., 26 Cl. Ct. at 226.
Id.
See id.; Skandia Ins. Co., 173 F. Supp. 2d 1288.
See Shea-S&M Ball, 606 F.2d at 1249.
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considered an act of God.165 In order to relieve a defendant of
responsibility for the consequences of his negligence, the
intervening cause must be one that severs the connection of
cause and effect between the negligent act and the injury.166
Nonetheless, an intervening cause must be both independent and
167
unforeseeable.
Lack of due care may be evident when a defendant
deliberately ignores avoidance of impeding danger. For instance,
in Apex, the court rejected the plaintiff’s act of God defense for an
oil spill which occurred after the plaintiff’s tug captain knowingly
towed barges, some of which were laden with slurry oil, up the
168
The captain, in the face of intensifying
Mississippi River.
current in close proximity to the bridge and just below a sharp
bend in the river chose to negotiate a bridge with his tug and
tow.169
The apparent lack of due care and deliberate disregard that
strong fast currents were precipitating damage to navigational
aids are what the court believed led to the spill.170 The fact that
the captain disregarded all warnings in an attempt to tow the
barges led to the incident and any resulting violation could not be
excused as an act of God.171
In another case, the court rejected the act of God defense, in
part because the court concluded that the effects of the hurricane
could have been prevented if only the plaintiffs had exercised due
care by not dumping hazardous waste into mine workings in the
172
Similarly, the act of God defense was also rejected
first place.
in Stringfellow, where the plaintiffs sought to recover the costs of
remediation from owners and operators of a toxic waste facility.173
The court’s rejection of the act of God defense was based in part
on the court’s finding of lack of exercise of due care and the belief
that any harm caused by the rain event could have been
174
prevented through the design of proper drainage channels.
Suffice it to say that while lack of negligence is not sufficient
to successfully prove an act of God defense, one cannot
165.
166.
167.
168.
169.
170.
171.
172.
173.
174.
Id.
Wolff v. Light, 156 N.W.2d 175, 180 (N.D. 1968).
Id.
See Apex Oil Co., 208 F. Supp. at 657.
Id.
Id.
Id.
See Alcan Aluminum Corp., 892 F. Supp. at 658.
See Stringfellow, 661 F. Supp. at 1053.
Id. at 1061.
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successfully invoke the act of God defense if one’s failure to
exercise due care is a contributing factor to the resulting
violation. This is another reason the act of God defense is almost
impossible to meet, because on one hand, one’s negligence
deprives one of the defense, and on the other hand, one’s lack of
negligence does not always exonerate one from liability because
the defense is cause-based and not fault-based.
F. Liability is strict
The starting point for interpreting a statute is the language
of the statute itself.175 “Absent a clearly expressed legislative
intention to the contrary, that language must ordinarily be
regarded as conclusive.”176 The definition of what constitutes an
act of God in the federal environmental statutes is very strict,
leaving no room for second guessing. This strict liability scheme,
found in environmental statutes, means that one is held liable for
violation of environmental regulations unless one shows the
violation occurred due to one of the liability exceptions which
includes an act of God. The courts have stated that the liability
exceptions under section 1321(f)(1) of the CWA must be narrowly
construed to effectuate Congress’ strict liability scheme.177 In the
congressional record of the CWA, Senator Boggs explained that,
“such exemptions have the effect of protecting the public in
nearly every case, while safeguarding private interests at rare
times of great disaster.”178 Clearly, the courts’ priority is to
protect the public health and safety if at all possible, while
leaving little room to excuse violations characterized as an act of
God.
In that respect, the environmental statutes such as CWA
impose strict liability upon the owner or operator unless he “can
prove that one of the exceptions,” which include an act of God
179
The goal of applying strict liability is
defense, “does apply.”
evidenced in Congress’ determination that a system of absolute
180
liability with specified limits best protected the public interest.
Congress felt such a system properly placed the cost for an oil
spill, for instance, on the responsible party, and not on the
175.
See W. of England Ship Owner’s, 872 F.2d at 1196.
176.
See Consumer Prod. Safety Comm’n, 447 U.S. at 108.
177.
U.S. v. LeBouf Bros. Towing Co., 621 F.2d 787, 789 (5th Cir. 1980).
178.
W. of Eng. Ship Owner’s, 872 F.2d at 1196 (citing 115 CONG . REC. 28957,
reprinted in IV EPA C OMPILATION at 1771 (1973)).
179.
See Sabine Towing, 666 F.2d at 563..
180.
Reliance Ins. Co., 677 F.2d at 849.
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general public.181
Therefore, a plaintiff must carry an
extraordinarily heavy burden to recover cleanup costs from the
United States when the cause of the violation is characterized as
an act of God.182 The legislative history and intent of the OPA
(namely to expand the liability of the discharger), combined with
the textually similar and identical definitions of an act of God in
the CWA and CERCLA, respectively, “strongly militates in favor
of finding that Congress intended to establish a uniformly and
singularly limited ‘act of God’ defense,” all with strict liability.183
The act of God defense is narrowly construed, and only in the
situation where the discharge was totally beyond the control of
the discharging vessel (or beyond the control of the party
invoking the act of God defense) would the responsible party be
excused from liability.184
IV. OVERVIEW OF THE ACT OF GOD DEFENSE IN TEXAS
The Texas Commission on Environmental Quality (formerly
known as the Texas Natural Resource Conservation
185
Commission) (“TCEQ,” “TNRCC” or “the Commission”), is the
state’s environmental agency that enforces compliance with the
state’s environmental laws, and responds to emergencies and
natural disasters that threaten human health and the
186
environment. The TCEQ, in limited circumstances, may waive
enforcement related to violation of the state’s environmental laws
if the cause of the violation was an act of God. The Texas state
legislature has recognized that acts of God may occur that may
result in violations of the state’s environmental regulations, and
as such, has provided a defense for those violations.187 The act of
God defense not only provides a defense to an enforcement
action, it also bars the findings of liability for violations of
environmental statutes, rules, Commission orders and permits in
extraordinary events beyond the control of the respondent. If a
respondent can establish that an event that would otherwise be a
violation was caused solely by an act of God, the event is not
181.
Id.
182.
St. Paul Fire & Marine Ins. Co. v. U.S., 4 Cl. Ct. 762, 768 (1984).
183.
See Apex Oil Co., 208 F. Supp. 2d at 654.
184.
Id. (citing Reliance Ins. Co., 677 F. 2d at 849).
185.
TNRCC Name Change Effective Today, Amarillo.com, Sept. 2, 2002,
http://www.amarillo.com/stories/090202/tex_tnrcc.shtml,
186.
OFFICE OF COMPLIANCE AND ENFORCEMENT, TEX . COMM’N ON ENVTL QUALITY
(2008), http://www.tceq.state.tx.us/about/organization/oce.html.
187.
See TEX. WATER. CODE ANN . § 7.251 (Vernon 2006); 30 TEX. ADMIN. CODE § 70.7
(2008).
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23
considered a violation.188 The act of God may be invoked as a
defense in violations pertaining to air, water and waste. While
acts of God are recognized as a defense, they do not excuse all
violations over which the respondent had no control, rather, they
are strictly limited to violations over which the respondent could
not have had any control and could not have anticipated. Similar
to the federal regulations, the Texas act of God defense places the
burden of proof on the person asserting the defense.189
The main impact of the act of God defense is on enforcement
190
Despite the fact that one’s actions
actions seeking penalties.
may be excused if the violation was caused by an act of God, the
act of God defense would not prevent a court from enforcing by
injunction any code requirement or prohibition, including the
requirement of compliance with all provisions of permits, rules
and orders of the Commission.191 The act of God defense would
prevent the imposition of a penalty for a past occurrence proven
by the respondent to have been caused solely by an act of God,
but would not preclude imposition of penalties for a continuing
violation persisting after the original act of God ceases to be the
sole cause.192 The following codes recognize the act of God as a
defense in Texas environmental laws.
A. Texas Statutes
i.
Texas Health and Safety Code
§ 361. 275. Solid Waste Disposal Act
The purpose and policy behind the Solid Waste Disposal Act
is to “safeguard the health, welfare, and physical property of the
193
people and to protect the environment.” This goal and purpose
are achieved by “controlling the management of solid waste,
including accounting for hazardous waste that is generated.”194
The state controls the management of solid waste by requiring
188.
30 TEX. ADMIN . CODE § 70.7(a).
189.
Id. § 70.7(b).
190.
Letter from Dan Morales, Attorney Gen. of Tex., to Gerald Clifford, Acting Reg.
Adm., U.S. Envt. Prot. Agency, Region VI (March 13, 1998) (on file with author), available
at
http://www.tceq.state.tx.us/assets/public/permitting/waterquality/attachments/municipal/
agsupp~1.pdf.
191.
Id.
192.
Id.
193.
TEX. HEALTH & SAFETY CODE ANN. § 361.002 (2007).
194.
Id.
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hazardous waste to be stored, processed, and disposed of only at
permitted hazardous industrial solid waste facilities.195 Failure
to comply with proper storage, processing and disposal of
hazardous industrial solid waste could subject one to an
enforcement action.
A person responsible for a violation involving an actual or
threatened release of solid waste may be subject to an
administrative order or a civil suit for injunctive relief unless the
person can establish that the release or threatened release was
196
To successfully claim an act of
caused solely by an act of God.
God as a defense, the responsible party must establish by
preponderance of the evidence that the respondent exercised due
care and took precautions against foreseeable acts and the
consequences that could foreseeably result from those acts.197
§ 382.063. Issuance of Emergency Order Because of
Catastrophe
The act of God is not only used as a defense by a respondent,
but may provide the commission with justification for issuance of
an emergency order due to a catastrophe.198 To be characterized
as a catastrophe, the incident has to be “an unforeseen event,
including an act of God, . . . beyond the reasonable control of the
operator that makes a facility or its functionally related
appurtenances inoperable”.199 If the incident were such that the
operator could have reasonably prevented it, the act of God
defense would likely fail.
ii. Texas Water Code
§ 7.251. Act of God
The Texas Water code recognizes an act of God as a defense
for the violation of a statute, rule, order or permit so long as
there was no contributing factor. It states:
If a person can establish that an event would otherwise
be a violation of a statute within the commission’s
jurisdiction or a rule adopted or an order or a permit
issued under such a statute was caused solely by an act
of God or other catastrophe, the event is not a violation of
195.
196.
197.
198.
199.
Id. § 361.275(b).
Id. § 361.275(a)(1). See generally id. § 361.271 (defining a responsible person)
TEX. HEALTH & SAFETY CODE ANN. §§ 361.275(a)(1), (b)(1)-(2) (2007).
Id. § 382.063(a).
Id.
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that statute, rule, order, or permit.200
§ 26.355. Recovery of costs
If the Commission has incurred any costs in the release of
regulated substances from an underground or aboveground
storage tank, the owner or operator is liable to the state for all
201
However, the commission will not hold
reasonable costs.
owners or operators of a facility liable for costs incurred in
undertaking corrective action and will not initiate an
enforcement action with respect to the release of regulated
substances from an underground or aboveground storage tank, if
the release was caused by an act of God.202
§ 5.515. Emergency Order because of Catastrophe
An emergency order may be used to authorize immediate
action for the “addition, replacement, or repair of facilities, roads,
bridges or other infrastructure improvements necessitated by a
catastrophe and the emission of air contaminants during the
203
Similar to
addition, replacement, or repair of those facilities.”
Section 382.063 of the Health and Safety Code, catastrophe is
defined as “an unforeseen event, including an act of God . . .
beyond the reasonable control of the applicant, that makes a
facility inoperable.”204
§ 26.267. Oil and Hazardous Substances Spill Prevention
and Control Act
Under the Oil and Hazardous Substance Spill Prevention
and Control Act, “no person shall be held liable . . . for any spill
205
or discharge resulting from an act of God.”
§ 26.504. Waste Application Field Soil Sampling and Testing
The operator of a concentrated animal feeding operation is
required to contract for collection of one or more representative
composite soil samples, at least once every 12 months, from each
waste application field to determine the phosphorous level in the
soil or test for any other nutrient designated by the Executive
200.
201.
202.
203.
204.
205.
TEX. WATER CODE ANN. § 7.251 (Vernon 2006).
Id. § 26.355(a).
Id. § 26.355(b)(1)(A).
TEX. WATER CODE ANN. § 5.515 (Vernon 2008)
Id.; TEX. HEALTH & SAFETY CODE ANN. § 382.063.
TEX. WATER CODE ANN. § 26.267.
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Director (“ED”) of the TCEQ.206 If the samples tested show a
phosphorous level in the soil of more than 500 parts per million,
the operator is required to file with the commission a new or
amended nutrient utilization plan with a phosphorous reduction
207
If there is no reduction in phosphorous, the owner
component.
or operator will be subject to enforcement for a violation at the
discretion of the ED.208 The ED may not subject the owner or
operator to enforcement if the reason for the failure to reduce
phosphorous in the soil is caused by an act of God.209
iii. Chapter 30 of the Texas Administrative Code
§ 70.7. Force Majeure
The act of God defense found in section 7.251 of the Texas
Water Code is also found in the Texas Administrative Code.210 As
in the Texas Water Code, if a person can establish that an event
that would otherwise be a violation of a statute, rule, order, or
permit was caused solely by an act of God or other catastrophe,
the event is not a violation of that statute, rule, order, or
permit.211 The owner or operator of the facility has the burden of
proof to demonstrate that any pollution or discharge is not a
violation.212 If the violation involves a permit, the permittee must
submit notice to the ED as provided by §305.125(9) relating to
213
If good cause exists, the ED may
Standard Permit Conditions.
initiate and the Commission may order a major amendment,
minor amendment, modification, or minor modification to a
permit and the ED may request an updated application if
necessary.214 Good cause includes, but is not limited to an act of
215
God.
B. Elements of the act of God defense in Texas
In order to successfully invoke the act of God as a defense in
206.
Id. § 26.504(a)-(b).
207.
Id.§ 26.504(c).
208.
Id. § 26.504(e) (Vernon 2008).
209.
Id. § 26.504(e).
210.
30 TEX. ADMIN . CODE ANN. § 70.7(a) (2008).
211.
Id.
212.
Id. § 70.7(b).
213.
Id. § 70.7(c). The permittee is required to report any noncompliance to the
executive director which may endanger human health or safety, or the environment. 30
TEX. A DMIN. CODE 205.125(9) (2009).
214.
30 TEX. ADMIN . CODE § 305.62(d) (2009).
215.
Id. § 305.62(d)(4).
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Texas, one has to prove that the violation was indeed solely
caused by an act of God and not caused by an act of man or any
interference by man.216 The act of God defense in Texas is similar
to the act of God defense laid out in the federal environmental
statutes. The similarity between the Texas and the federal
environmental statutes is evidenced in the definition of what
constitutes an act of God in Texas. According to the Texas
Supreme Court, an act of God is:
[A]n accident that is due directly and exclusively to
natural causes without human intervention and which
no amount of foresight or care reasonably exercised could
have prevented. The accident must be one occasioned by
the violence of nature, and all human agency is to be
excluded from creating or entering into the cause. The
terms implys [sic] the intervention of some cause not of
human origin and not controlled by human power. If the
derailment resulted in whole or in part from human
negligence it was not an act of God.217
Based on this definition, to successfully invoke an act of God
defense in Texas, one has to prove the following:
i. The act of God must be unanticipated
Texas law provides a defense against an enforcement action
where the respondent can prove that the violation was caused by
218
If a
an act of God and that the act of God was unanticipated.
respondent could have reasonably anticipated a discharge, and
could have taken steps to prevent it by care and foresight, proper
planning, or maintenance, then the act of God defense is
219
For example, if a heavy rainfall is reasonably
unavailable.
foreseeable due to a prior weather forecast and the respondent
fails to take precautionary measures, the respondent would be
unable to claim the act of God defense for a discharge caused by
the rain.220
The court addressed the issue of forseeability in an act of
God case in an action brought against a railroad company as
221
The loss of the
carrier for loss of steers owned by appellee,.
216.
Scott v. Atchinson, Topeka & Santa Fe Ry. Co., 572 S.W.2d 273, 279 (Tex. 1978).
217.
Id.
218.
See, e.g., Atchison, Topeka & Santa Fe Ry. v. Scott, 551 S.W.2d 740, 741 (Tex.
Civ. App.—Beaumont 1977), aff’d, 572 S.W.2d 273 (Tex. 1978).
219.
State Program Requirements’ Approval of Application to Administer NPDES
Program, 63 Fed. Reg. 51164, 51172 (Sep. 24, 1998).
220.
Id.
221.
Mo.-Kan.-Tex. R.R. of Tex. v. Roegelein Provision Co., 260 S.W.2d 605 (Tex. Civ.
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steers occurred when a flood struck the Kansas City area.222 The
court held that the storm was not foreseeable because, from the
beginning of the flood, there was no notice or warning that the
flood was expected.223 The court concluded that the loss of the
steers was due to an act of God because there was no evidence in
the record indicating that the flood was caused by anything other
than a wholly unexpected and unprecedented rise in the
224
waters. This lack of warning before the flood shows that it was
not foreseeable.
ii. The act of God must be unprecedented
For a violation to be attributed to an act of God under Texas
law, the incident has to be of an extraordinary nature. For
instance, not all heavy rainfalls are necessarily considered an act
of God. Instead, for a rainfall to constitute an act of God, it must
be such an unusual or extraordinary rainfall as has no example
or parallel in the history of rainfall in the general vicinity
affected.225 The rainfall characterized as an act of God should
afford no reasonable warranty or expectation that it will likely
occur again, and should not reasonably be expected to reoccur,
226
even at long intervals.
The act of nature leading to a violation must be unusual or
unprecedented, and while it need not be the sole, greatest, or
harshest violent act ever experienced, it need only be so unusual
that it could not have been reasonably expected or provided
227
against. If the extraordinary event or rainfall is normal for that
vicinity and has occurred “within the memory of men then
living,”228 the occurrence should be anticipated and is therefore
not likely to be classified as an act of God.229 In Texas, rainfall
events beyond the 25-year, 24-hour rainfall event are typically
considered an “act of God,”230 because these events are not typical
occurrences.
In a suit by a railroad employee to recover for personal
App.—San Antonio 1953, writ ref’d n.r.e.).
222.
Id. at 609.
223.
Id.
224.
Id. at 610.
225.
State v. Malone, 168 S.W.2d 292, 300 (Tex. Civ. App.—Austin 1943, writ ref'd
w.o.m.).
226.
Id.
227.
McWilliams v. Masterson, 112 S.W.3d 314 (Tex. App.—Amarillo 2003, pet.
denied).
228.
Id. (citing Gulf, Colo. & Santa Fe Ry. v. Pomeroy, 3 S.W. 722, 724 (Tex. 1887)).
229.
Id.
230.
31 Tex. Reg. 6033, 6036 (2006) (to be codified at 30 Tex. Admin. Code § 311.79).
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injuries sustained when a train derailed, the plaintiff alleged his
injuries were caused in whole or in part by the negligence of the
defendant railroad company due to faulty construction and
maintenance of the railroad track.231 Defendant asserted an
affirmative defense that the washout of its tracks, which led to
plaintiff’s injuries, was caused by an act of God in that there was
232
The unprecedented
an unprecedented rainfall in the area.
rainfall was confirmed by a 55-year resident of the area who
testified that they had more than six inches of rain on the day of
the accident.233 According to the resident, the area had not
experienced that type of unprecedented rainfall for at least 55
years.234 In addition, meteorologists confirmed that the rain was
substantially more than was likely to occur once in one hundred
years and was an extraordinary rainfall.235
This type of
unprecedented weather condition is usually required for an act of
God determination in Texas.
In another case, appellee-shipper, American Petrofina
Marketing, Inc., brought a suit against appellant-carrier,
Utilities Pipeline Company, for damages resulting from loss of
the shipper’s diesel fuel.236 Utilities Pipeline appealed from a
summary judgment in favor of the appellee-shipper.237 The fuel
loss occurred when the carrier’s pipeline (in which the shipper’s
238
The carrier
diesel fuel was located) broke during a flood.
attributed the incident to a rainstorm which resulted in a flood
and claimed an act of God defense.239 EPA investigated the spill
and concluded that the cause of the spill was an unprecedented
eleven inch rainfall causing floodwaters that were heavier than
240
usually expected in that location. The court concluded that the
summary judgment proof raised genuine issues of material fact
as to whether the pipeline break resulted from the intervention
of flood waters and was an act of God.241
231.
Atchison, Topeka & Santa Fe Ry., 551 S.W.2d at 741.
232.
Id.
233.
Id.
234.
Id.
235.
Id.
236.
Utils. Pipeline Co. v. Am. Petrofina Mktg., 760 S.W.2d 719, 720 (Tex. App.—
Dallas 1988, no writ).
237.
Id.
238.
Id.
239.
Id.
240.
Id.
241.
Utils. Pipeline Co., 760 S.W.2d at 724.
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iii. The act of God must be the sole cause of the disaster
To successfully invoke the act of God defense, one has to
show that the act of God was the sole cause of the violation.242
Damages resulting from an act of God are not ordinarily
243
chargeable to anyone. However, for one to attribute an incident
to an act of God and be relieved of liability, there must be no
negligence of the respondent concurring with the act of God to
cause the violation.244 Instead, the respondent must show that
the violation was due directly and exclusively to natural causes
without human intervention, and that no amount of foresight or
245
care reasonably exercised could have prevented the harm. The
incident must be one occasioned by the violence of nature, and all
human agency is to be excluded from creating or entering into
the cause.246 For example, if a facility is not designed, operated,
or maintained properly, then any discharge resulting from such a
facility would not be solely caused by an act of God, because the
failure to properly design, operate or maintain the facility
contributed to the discharge. In that case, the facility would be
unable to claim the act of God defense for the discharge.247
The Office of the Attorney General of Texas (“AG”) has shed
some light on the state’s application of the act of God defense in
environmental regulation. In a letter to the EPA dated March
13, 1998, the AG discussed the use of act of God as an affirmative
defense in Texas.248 The letter centered on two main provisions,
one in the Texas Water Code and the other in the Texas
Administrative Code.249 In the letter, the AG stated that the act
of God defense for unauthorized discharges applied only if the
event causing the discharge was completely outside the control of
the person otherwise responsible for the discharge and only if the
discharge could not have been avoided by the exercise of due
242.
Luther Transfer & Storage, Inc. v. Walton, 296 S.W.2d 750, 753 (1956).
243.
Id.
244.
Id.
245.
Scott, 572 S.W.2d at 280.
246.
Id.
247.
State Program Requirements; Approval of Application to Administer NPDES
Program, 63 Fed. Reg. 51164, 51172 (Sep. 24, 1998).
248.
Letter from Dan Morales, Attorney Gen. of Tex., to Gerald Clifford, Acting Reg.
Adm., U.S. Envtl. Prot. Agency, Region VI (March 13, 1998) (on file with author),
available
at
http://www.tceq.state.tx.us/assets/public/permitting/waterquality/attachments/municipal/
agsupp~1.pdf.
249.
Id. The Attorney General’s letter focused on TEX. WATER CODE § 7.251 and 30
TEX. A DMIN. CODE § 70.7.
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care, foresight, or proper planning, maintenance or operation.250
This interpretation of the act of God defense is consistent with
the various courts’ rulings already discussed in this article that
state any contributing cause to the act of God disqualifies the
incident from being characterized as solely caused by an act of
God.
iv. Exercise of due care or foresight
The act of God defense does not shield a respondent from
liability if the respondent’s action or inaction contributed to the
violation.251 Even if a discharge at a facility was initially caused
by an act of God, and the facility owner or operator in no way
contributed to the discharge either through his action or inaction,
if the facility owner or operator could have taken steps to stop
the discharge from continuing, but failed to do so, the facility
operator would be liable for the continuing discharge.252 If the
violation resulted in whole or in part from human negligence
then it was not an act of God.253 In Utilities Pipeline, a diesel spill
caused by a pipeline broken during an unprecedented rainfall
254
was by attributed to an act of God by the appellant-carrier.
The EPA spill report concluded that the discharge could not have
been prevented using reasonable care because the excessive rains
would have washed out any type of pipeline.255 In addressing a
summary judgment motion, the court held that genuine issues of
material fact existed as to whether the pipeline break was due
directly to natural causes which no amount of foresight or care
256
reasonably exercised could have prevented.
In Gulf Refining Co., the court rejected an act of God defense
257
There,
and attributed the incident to appellant’s negligence.
the plaintiff instituted a suit against the appellant to recover for
damages alleged to have been caused to his land and crop due to
appellant’s negligence.258
Plaintiff alleged that appellant
corporation engaged in the transportation of crude oil by
250.
State Program Requirements for Approval of Application to Administer NPDES
Program, 63 Fed. Reg. 33655, 33662 (Sep. 24, 1998).
251.
Letter from Dan Morales, supra note 183.
252.
State Program Requirements; Approval of Application to Administer NPDES
Program, 63 Fed. Reg. at 33662 .
253.
Luther Transfer & Storage, Inc., 497 S.W.2d at 753.
254.
Utils. Pipeline Co., 760 S.W.2d at 721.
255.
Id. at 722.
256.
Id. at 724.
257.
Gulf Ref. Co. v. Nabers, 134 S.W.2d 843 (Tex. Civ. App.—Amarillo 1939, no
writ).
258.
Id. at 843.
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pipelines, one of which crossed a creek a few miles north of
plaintiff’s property.259 On the night in question, the creek
overflowed, appellant’s pipeline broke, and great quantities of oil
escaped onto plaintiff’s property.260 The appellant attributed the
damages to excessive rains and flood waters in the creek that
261
The jury disagreed with the
constituted an act of God.
appellant and found that appellant’s negligence in the
construction and maintenance of its pipeline was the proximate
cause of the oil overflow and the damage to plaintiff’s land and
crops.262
V. CONCLUSION
263
The legislative history of the OPA, the similar definition of
264
and the identical definition in
act of God in the CWA,
CERCLA,265 considered together with the fact that OPA was
intended to expand the liability of the discharger,266 strongly
militates in favor of finding that Congress intended to establish a
uniformly and singularly limited act of God defense. “These
defenses are narrowly construed and only in the situation where
the discharge was totally beyond the control of the discharging
vessel would the responsible party be excused from liability.”267
The elements for proving an act of God defense present a
very strict standard. Not only does one have to prove that the act
of God was not anticipated, one also has to show that it was not
268
Also,
merely a natural disaster, but rather a “grave” one.
assuming that one successfully shows that the act of God was not
anticipated and that it was a grave natural disaster, one then
has to show that one’s interference with the act of God did not
contribute to the impact or effect of the act of God and that no
amount of due care could have prevented the resulting impact of
the act of God. Even after proving lack of negligence, one may
259.
Id. at 844.
260.
Id.
261.
Id.
262.
Gulf Ref. Co., 134 S.W.2d at 844.
263.
See Oil Pollution Act, 33 U.S.C. §§ 2701-2761 (1990).
264.
Clean Water Act, 33 U.S.C. § 1251 (2002).
265.
See Comprehensive Environmental Response, Compensation, and Liability Act,
33 U.S.C. §§ 1251-1387 (1980).
266.
Apex Oil Co., 208 F. Supp. 2d at 654 (citing S. REP. NO. 101-94, 101st. Cong.,
2d Sess., reprinted in 1990 U.S.C.C.A.N. 723-24,726).
267.
See English, 2001 WL 940946.
268.
33 U.S.C. §§ 2701(1).
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still be held liable for the violation because the act of God defense
is causation-based, not fault-based.269
Texas statutes that allow an act of God defense are similar
to the federal environmental statutes. Under both state and
federal laws, the standard of proof seems very difficult to attain.
This begs the question, is the act of God defense really necessary,
or a waste of judicial resources? Should the act of God defense be
either repealed or amended, as it is almost impossible to meet
the burden of proof? After reviewing the statutory requirements
relating to three major environmental statutes and the Texas
statutes, it is clear that the act of God defense is one the courts
are very reluctant to grant. Furthermore, it is a defense that
should either be repealed or amended to make it possible for one
to successfully invoke it.
269.
See 42 U.S.C. §§ 9601-9675.